Other courts have upheld the use of taint team procedures. See, e.g., United
States v. Grant, No. 04 CR 207BSJ, 2004 WL 1171258 (S.D.N.Y. May 25, 2004).4 In
United States v. Grant, the court approved the use of a taint team procedure similar to
the one proposed at bar where the members of the taint team would not be involved in
the prosecution, and the defendants would have the opportunity to object to any
privilege determinations made by the taint team. Grant, 2004 WL 1171258, at *1.
Thus, any such unresolved privilege issues would ultimately be resolved by the Court.
Id. The Grant court reasoned that such review procedure did not prejudice defendants
because the Court would resolve any disputes before materials were turned over to the
prosecution team. Id. Moreover, the court opined that “permitting the Government’s
privilege team to conduct an initial review of the documents will narrow the disputes to
be adjudicated and eliminate the time required to review the rulings of a special master
or magistrate judge. . . .” Id. at *3.
After examining the facts of the instant case and the Government’s proposed taint
team procedure, the Court will permit the Government to commence reviewing the materials through use of the proposed taint team procedure.5 In so holding, the Court
recognizes that other courts have questioned and/or rejected the use of the taint team
procedure. See In Re Search of the Scranton Hous. Auth., No. 04 Misc. Nos. 318-322,
2006 WL 1722565, at *5 (M.D. Pa. June 22, 2006) (citing various cases questioning or
rejecting taint team procedures); see also In Re Search Warrant of Law Offices
Executed on March 17, 1992, 153 FRD 55 (S.D.N.Y. 1994). The Court nevertheless
determines that such procedure will allow expeditious review of all seized documents,
will allow the Government to continue with its investigations, and will nevertheless
allow the Court, at ERHC’s request, to resolve ultimate privilege disputes before any
potentially privileged materials are disclosed to the prosecution team. Although the
Court determines the Government’s proposed taint team procedure will sufficiently
protect any potentially privileged documents, it echoes the sentiments voiced in Grant
and reinforces that its decision “is based upon the expectation and presumption that the
Government’s privilege team and the trial prosecutors will conduct themselves with integrity.” Grant, 2004 WL 1171258, at *3.6
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